I read several excellent books over the summer about the Supreme Court and the Constitution. I was hoping to find time to write extensively about them, but having failed to do so, I figured that I would mention them briefly.
I’ll start with law professor Stuart Banner’s superb history of the Supreme Court, The Most Powerful Court in the World. I was spurred to purchase the book by legal historian David Garrow’s glowing review of it. Garrow calls the book “simply the finest and most valuable book ever written about the U.S. Supreme Court, a work of such erudite breadth and interpretive sophistication that in a world governed by merit, it would be a slam-dunk winner of an upcoming Pulitzer Prize.” (His emphasis.) I evidently missed Adam White’s earlier, and likewise very positive, review: “thorough, nuanced, evenhanded and, above all, eminently readable.”
I’ll confess that I wondered whether I had been misled when I read the two opening sentences of the book (and the first two sentences on the jacket), “Will abortion be legal? Should people of the same sex be allowed to marry?” These tendentious questions of course confuse the issues that the Court has addressed (is there a constitutional right to abortion and to same-sex marriage?) with the policy question whether states should allow these things. But given how intelligent and fairminded the rest of the book is, I’m guessing that an editor insisted on this opening.
I’ll highlight two particular strengths of Banner’s book. First, he doesn’t adopt any particular interpretive lens and judge the different eras of the Court through that lens. Rather, he strives to present how and why the justices of the Court understood their role. Second, he doesn’t engage in heavyhanded presentism. Much of what he writes has obvious implications for current and recent controversies, but Banner largely leaves it to readers to draw their own lessons.
Like White, I had a few disagreements with Banner’s characterization of recent Court decisions, but I still found him to be admirably fair overall.
(In the unlikely event that the disclosure matters to anyone, I’ll note that Banner and I clerked at the Supreme Court the same year (1991-1992), he for Justice O’Connor, I for Justice Scalia. I don’t recall any contact with him in the intervening decades.)